United States v. Johnson

TALLMAN, Cirсuit Judge: Defendant-Appellant pled Todd Johnson guilty to one count of being felon in possession firearm, aof in violation of 18 924(a)(1). 922(g) §§ U.S.C. and appeal On (1) argues Johnson that the district court improperly suppress denied his motion to (2) the district court erred declining award him a one-level down- 3E.l.l(b) adjustment pursuant (cid:127)ward of the Sentencing Guidelines. We have jurisdiction under 28 U.S.C. we affirm. “no,” responded thing alright. She

I appeared nervous. and also 19, 2006, Alaska State On October Troy uniform, Aye Meeks Aye Deputy Trooper Although Vic Trooper Service States Marshals enforce- recognized the United law could still east on the serving federal warrants carrying He was several were ment officer. were The officers Anchorage. a side- equipment including side of pieces police un- driving an clothes and wearing plain taser, arm, two-way radio and he was utility vehicle. While sports marked wearing bulletproof vest underneath light at a traffic stopped officers were point, At clothing. some outer Bank, Dep- First National from the across some- directly Trooper Aye, said looked individ- suspicious noticed three uty Meeks Nelson, immediately and walked thing to lot parking standing in the bank’s uals Deputy Meeks observed out of the bank. The car was a tan Buick sedan. next to at the exit the bank and stand Johnson front from the bank’s about 20 feet parked ap- of the sedan. Johnson driver’s side The was raised. and its hood entrance get- to Brookins before peared gesture Johnson, identified as three men—later Trooper Aye and ting into the back seat. Brookins, Alvin Nelson—were and David by cellular Deputy Meeks communicated instead under the hood but looking just to what each had witnessed. phone as surveying the bank and to be appeared Aye then left the and re- Trooper bank drove surrounding area. As the officers joined Deputy police Meeks in the vehicle. Meeks observed Johnson away, Deputy stop question and The officers decided front toward the bank’s Nelson head the sedan They pulled the men. behind Johnson, a hooded wearing was who door. emergency lights. and activated their jacket, flipped up a under sweatshirt the car and dis- approached The officers obscuring his face. partially hood They verbally identi- badges. their played aroused, Meeks Deputy suspicions His offi- fied themselves as law enforcement just had Trooper Aye what he described Trooper and asked for identification. cers to double The officers decided witnessed. that the Aye told Johnson and Brookins they By look. the time for another back “might incident be a misunderstand- whole bank, hood the sedan’s circled back “just to talk they and that ing” want[ed] closed, alone and Brookins was had been with cooperated The men [them].” with seat. sitting in the driver’s in the vehicle they step out of request the officers’ nowhere to be The other two men were patted down Deputy car. Meeks Aye to enter Trooper decided seen. .25 cali- and discovered a loaded Brookins stayed outside Deputy Meeks bank while a pocket in his front handgun ber Brookins. to surveil pocket. Depu- in his back spare magazine Aye, bank, ty Trooper im- informed who Trooper Aye Meeks inside the Once Johnson, that he had found a talking to nervously watch- mediately noticed teller pat- Nelson, officers then conducted gun. stand- The who were ing Johnson and located anoth- down search Johnson whispering The men were ing line. pocket. pistol his coat other, to be er semi-automatic appeared and Johnson each Johnson and Broo- Aye The officers handcuffed lobby. Trooper surveying the bank the curb. Nelson and seated them on who kins employee another bank approached walked from the emerged He then bank eyeing the men. to be appeared also hands in his the sedan with his a state toward himself as surreptitiously identified every- pockets. if employee trooper and asked

Having already adopted discovered that his asso- magistrate’s recommendation armed, ciates were the officers drew their in full and denied Johnson’s motion to weapons own and demanded that Nelson suppress. 27, 2007, On November John- place plain his hands in view. After con- formally son entered a conditional frisk, ducting patdown which uncovered plea, which right appeal reserved his firearms, no additional the officers secured the denial of his motion. Nelson. At sentencing, did not explained The officers to the three sus oppose a two-level reduction to Johnson’s pects that the matter still could be a mis offense level acceptance responsibili- understanding, they but needed run ty under United Sentencing Guide- their identifications to determine whether (“Guidelines” “U.S.S.G.”) lines they any had active warrants or other 3El.l(a), presen- recommended history. point, criminal At that tence investigation report. previous drug volunteered that he had a ment, however, declined to move for an Deputy conviction Florida.1 Meeks and additional one-level decrease Trooper Aye contacted Anchorage Po citing Johnson’s decision to (“APD”), Department lice whose officers pursue suppression appeal. issue on responded and took over investigation. court, The district after considering the 19, 2007, April On Johnson was indicted parties’ arguments, rejected Johnson’s ar- in the District of Alaska on a single count gument that he should nonetheless be being firearm, a felon in possession of a awarded the third-level be- §§ violation of 922(g) 18 U.S.C. and timely pled guilty cause he per- and thus 924(a)(1). He was arrested soon thereaf- mitted the to avoid preparing Miami, Florida, ter in transported for a trial. The court then sentenced Anchorage where he arraigned. thirty Johnson to months incarceration fol- initially pled Johnson guilty. He filed years lowed supervised three release. a motion suppress аll evidence obtained This appeal followed. detention, aas result of the including the pistol pocket. officers had found his coat II Johnson also prosecution notified the that appeals first the district plead guilty he intended to if suppres- his motion, court’s denial of suppression sion motion was unsuccessful. which we review de novo. See United 1, 2007, On magistrate October judge Bautista, 584, States v. 362 F.3d 588-89 evidentiary motion, held an hearing on the (9th Cir.2004). Whether there is reason Deputy which both Trooper Meeks and able suspicion justify an investigatory Aye evaluating testified. After the evi- stop is a question mixed of law and fact dence testimony, and witness magis- also reviewed de novo. See United States trate recommended denial of Johnson’s Hall, (9th 1201, Cir.1992). v. 1204 motion, concluding that offi- We review factual findings for clear error. cers had suspicion reasonable that criminal Soriano, See United States v. Patayan activity 361 might be afoot to detain Johnson (9th 494, Cir.2004). F.3d 501 questioning Contrary and to patdown conduct a 19, 2007, search. On argument November Johnson’s dis- seizure of the court, trict over objections, Johnson’s firearm stemmed from a violation of his 2006, August unclear, however, Johnson was convicted in before us is whether John- Florida, County, Broward delivery of co- son prior disclosed to the that the officers caine, degree felony. a second felony record conviction was a conviction.

999 trained rights, experienced, (quot Amendment we think officers.” Id. Fourth frisk” amply supported “stop 675, record v. ing Sharpe, 470 United U.S. Ohio, 1, Terry v. U.S. 88 S.Ct. 392 (1985)). 682, 105 84 S.Ct. L.Ed.2d 605 (1968). 1868, L.Ed.2d 889 20 dispose first We of Johnson’s Amendment applies “The Fourth that his initial contention seizure amounted including person, all seizures required proba an arrest and therefore detention that involve a brief seizures argues cause from the outset. He ble of traditional arrest.” United States short arrest he was under from the moment (9th Cir.2003) Enslin, v. emergency lights, activated their officers Brignoni-Ponce, United States v. (quoting their vehicle pulled parked behind the se 873, 878,

422 U.S. 95 S.Ct. dan, approached the car. Based on (1975)). may Police detain L.Ed.2d record, disagree.2 our review of the we brief, investigatory an individual for seize reveals that Trooper Aye The record making the purposes, provided the officers “that crimi Meeks stop suspicion Deputy have reasonable identified themselves and may activity nal be afoot.” United States asked to talk to simply Johnson and Broo Orman, Cir. kins, fully cooperated who with the offi 2007) Terry, (quoting 392 U.S. request they cers’ exit their vehicle 1868). reasonably If an sus officer S.Ct. to a frisk. and submit may the individual be armed and pects finding weapons, After the officers were per the officer “frisk” the dangerous, justified handcuffing Johnson and Broo- if the stopped he has to determine son they kins as waited for third suspect carrying any weapons. is Unit individual the bank. emerge from See United States F.3d Washington, ed States v. Bravo, (9th v. 1010-11 Cir. (9th Cir.2004) (citing Terry, 392 U.S. 2002) that, (noting although handcuffing is 1868). limited 88 S.Ct. This frisk is determination, factor in a substantial clothing. Id. patdown to a exterior totality of the circumstances remains suspicion “Reasonable ‘is formed deciding suspect the test for whether a which, togeth facts by specific, articulable detained). merely was arrested or Even objective infer er with and reasonable after all three men with were secured ences, suspecting that form basis for handcuffs while the officers ran a back- person engaged is particular detained check, ” ground repeatedly officers reas- activity.’ in criminal States v. United suspects sured the that the detention Thompson, 282 F.3d Cir. more might nothing than a misunder- 2002) (quoting Rojas-Mil United merely and that its standing purpose wаs (9th Cir.2000)). lan, 234 F.3d 468-69 investigatory. Taken the cir- together, suspi determine reasonable “To whether cumstances Johnson’s detention would existed, the cion court must consider person lead a reasonable to believe that he totality surrounding circumstances free to leave once conduct- was the officers Hall, stop.” at 1204. This inquiry and allayed suspi- ed a brief their with reference to determination made id. at 1011. The court cions. See district knowledge “collective of the officers involved, by finding and the reached err in was not inferences did not that Johnson testimony Aye findings including Trooper made 2. We conclude the factual Meeks, by clearly the district court are not erroneous. Deputy which obvi- the district court findings by supported are the evi- The well ously credible. found hearing, presented dence arrest, detained, merely robbery but rather bank was about to take place, during period.3 the material time suspicion which increased their Moreover, might men be armed. the sus- investigatory stop The and frisk pects by outnumbered the officers three to by supported suspicion reasonable on Trooper Aye Deputy two. Meeks itself, quite facts similar to in Tеrry those justified, were therefore for their own suspected where an alert detective three safety, in conducting patdown frisk of men of casing possible a business for a Brookins and Johnson to weap- check for robbery. specific, articulable facts especially ons. This is true in Johnson’s Deputy Aye known to Meeks Trooper Deputy case. After Meeks first discover- support were more than sufficient to their ed a pistol loaded and an extra ammunition suspicion that Johnson and his associates clip in possession, Brookins’s the officers casing potential robbery were a bank for a greater had an even suspect basis to merely and not experiencing car trouble. might likewise be armed and that When two of the individuals entered the patdown another frisk was warranted for bank, flipped one up the hood on his hood safety. officer sweatshirt, ed which could aid conceal ing identity. his The third man remained are We unmoved Johnson’s efforts to outside, car, lowered the hood of the and provide explanations innocent for the con- sat in the driver’s seat. The two men duct both outside and inside the bank. inside the whispering bank were sеen to Whether this incident was indeed a foiled one another appeared while one to surveil robbery bank attempt simple or a misun- lobby visibly area. A nervous bank derstanding is not suppres- material to his employee Trooper Aye told that something sion appeal. motion or this Applying a was amiss in the bank. When one of the “totality of the circumstances” review of suspects became aware of Trooper Aye’s them, the facts then known to the officers presence, whispered he something possessed substantial support- information associate, bank, left the and returned to ing suspicion a reasonable that criminal waiting the sedan outside. A law trained activity was afoot and that weapons might enforcement officer reasonably could sus be involved. The investigatory stop and pect that these individuals might well be frisk of discovery Johnson and the of his intending ‍‌​​​​‌​​‌‌‌‌‌‌​​‌​​​‌​​‌​​​‌‌​‌‌‌​​​‌​‌​​​‌​‌​‌​‍to rob the bank and flee semi-automatic handgun did not violate his waiting getaway car. Fourth Amendment rights. The district court properly denied sup- his motion to

Given the nature suspected press the criminal evidence. activity, the jus officers were also in patting tified down Depu Johnson. As Ill tеstified, ty Meeks experience, his “[a]l- most everybody has weapons” Guidelines, in Alaska. Under the a defen But here the suspected officers that a dant “clearly who acceptance demonstrates 3. The dispute does not differing degrees that John- of intrusion characteristic to But, ultimately each.’’). son's detention escalated into an readily apparent it is that John- Robertson, arrest. See United States v. 833 son’s did arrest not occur until well after the (9th Cir.1987) ("We F.2d 780 often con- patdown officers had conducted search legitimate front the ‘Terry issue of when a pocket, discovered the firearm in his coat stop,’ suspicion for which reasonable of and even after Johnson volunteered that he activity Therefore, required, criminal is prior escalates into an pre- had a conviction. probable arrest for which required. cause is cise moment of arrest is not material to the differing standards for each reflect the issue before us.

1001 for his is entitled court to allocate their resources effi- responsibility of offense” by ciently, decrease offense level 1 a decrease in offense level. two-level level. additionаl 3El.l(a); v. see United U.S.S.G. 3E1.1(b). 456 1133-34

Espinoza-Cano, said, F.3d have As we U.S.S.G. (9th Cir.2006). a government’s this re “the discretion to file mo Johnson received 3E1.1(b) power, tion under section is ‘a not challenges the sentencing. He duction ” duty.’ Espinoza-Cano, 456 F.3d at 1135 him an grant refusal district court’s Moreno-Trevino, (quoting United States v. adjustment additional one-level downward Cir.2005)). 1186 3El.l(b) after de under government has been vested with “[T]he A to move for extra reduction.4 clined broad discretion determine when the decision to reduce district court’s whether appropriate.” is acceptance sentence for of defendant’s Medina-Beltran, States v. United responsibility is for clear error. reviewed (9th Cir.2008) curiam) (per F.3d A Espinoza-Cano, 456 at 1130. dis F.3d (internal omitted). brackets interpretation application trict court’s discretion, however, This is not are reviewed de novo. the Guidelines circuits, limitless. Like many of our sister Becker, F.2d United States have held that prosecutor we “a afford (9th Cir.1990). the same to file an accep ed discretion responsibility tance of motion for a third- for, provide The Guidelines but do reduction level under section mandate, not reduc additional one-level filing that afforded substantial by upon governmеnt. tion a motion assistance motion under section 5K1.1.” (b) §of 3E1.1 Subsection states: at 1136. A dis qualifies If a decrease the defendant trict court review the (a), subsection the offense level 1.1(b) §a refusal to file 3E motion and prior operation determined grant the additional one-level reduction (a) greater, is level or subsection if it sponte sua finds that the decision was stating motion of the upon (1) animated an unconstitutional motive authori- that the defendant has assisted (2) discrimination), racial or (e.g., arbi investigation prosecution in the ties trary i.e., rationally legit related to a — notifying by timely misconduct his own Id.; governmental imate interest. see also to enter a authorities of intention Moreno-Trevino, 1185-86. guilty, thereby permitting of showing The burden unconstitutional trial preparing to avoid motive or arbitrariness rests on the defen the at permitting government Espinoza-Cano, the and dant. 1136.5 However, 1.1(b) Although merely advisory point Judge after United States 3E reduction. Smith, Booker, concurring opinion, v. his advocates 543 U.S. 125 S.Ct. circuit, (2005), two-part inquiry for a distinct that no sentencing L.Ed.2d 621 courts must ours, including employed has ever even "starting point" the Guidelines a consult as suggested. good There is reason for this uni- sentencing the ad for the determination and significantly, it versal conclusion. Most de- "range correctly.” visory must be calculated plain provision, of fies the text the Guidelines Carty, United States sentencing which conditions the court’s au- (en banc), Cir.2008) denied sub nom. cert. thority by decrease level - one additional States, -, Zavala v. United U.S. acceptance responsibility "upon of motion of (2008). S.Ct. 171 L.Ed.2d 780 3El.l(b). government.” the Thus, U.S.S.G. unanimously the same panel 5. The reaches when a defendant such result, judges agree government's challenges and all that the the refusal to file motion, inquiry presented legitimate a reason for a the ment here such courts discretionary declining engage improp- in is whether that refusal was to move the reduction, did not a government despite The file the absence of a motion 3El.l(b) government, motion the third-level re- because he had stipu- duction, citing stated intention Johnson’s lated to all necessary the facts to establish appeal order. Accord- guilt, thereby assisting a manner ingly, the issue before us is whether the government that allowed the pre- to avoid expenditure prosecutorial allocation and of paring for trial. 456 F.3d at 1134. After purposes defending of an resources establishing the proper standard applica- appeal declining is a rational basis for to ble when the district court act without point. move for the third reduction We motion, a government rejected we the de- 3El.l(b) hold that it speaks is. When argument fendant’s because stipulated conserving government resources bench trial —which the district court “prosecution” of the defendant’s “miscon- dubbed a colloquy” “semi-modified Rule 11 duct,” it simply means more than trial plea,” or “slow required id. 1129—still preparation. commonly “Prosecution” is expenditure of resources. Id. at 1138. understood to encompass entirety explored legitimate We reasons the criminal proceedings particular justified decision to with- case until judgment is final and certain. hold a motion: an has interest in secur- Even if equate we were to a stipulated ing outright guilty pleas. A conditional outright bench trial with an guilty plea, plea provide finality does not to the mat- still would not have ter, and the must then allocate been compelled to file the motion. precious appeal. resources to the Time There are rational gov- reasons for the рersonnel are not unlimited. Re- prefer outright ernment an guilty sources appeals devoted to are resources plea stipulated to a par- bench trial. In lost prosecuting other cases. ticular, as the urges, United States v. allows the our to avoid circuit’s seminal relating expending case gov “anticipating, resources 3El.l(b), ernment’s discretion under ultimately defending, complete ap- Wade, defendant peal.” contended that he was entitled As noted in Govern- “[t]he to the extra acceptance responsibility ment’s decision may[be] to move erly Beatty, all). motivated. See United present explanation States v. ment need not (1st Cir.2008) (joining "[e]very The result is the same. Rather than ruminate other circuit that has th[e] considered revised arguably further on what amounts to seman- provision” holding that a defendant who tics, merely purpose we note that the challenges prosecutor's refusal to file a 2003 amendments to discussed motion must show that the refusal infra, assign availability control of the "was based on an unconstitutional motive or point prose- of the additional reduction rationally any was not legitimate related to view, gov- cution. In the Commission's (internal quotations Government end” omit- position ernment is in the best to evaluate ted)). way whether the defendant has acted in a Further, separating legal question into clearly acceptance responsi- demonstrates separate parts prac- little makes sense from a offense, bility for his and whether he did so in instance, standpoint. tical For if Johnson did government a fashion that saved the and the plead guilty in a manner described in particular court resources in the case. De- legitimate, that would serve as a spite opportunities, innumerable no circuit non-arbitrary reason for the to sought court analysis has to bifurcate the colleague's

withhold the motion. Under our colleague the manner our does. We see no interpretation, ''eligi- Johnson would not be depart reason to from the wisdom of our discretionary ble” for the reduction in the predecessors. (and presumably first instance govern-

1003 additional level move for the not to rational assess- sion its simply ... on based arbitrary. was not reduction that ‍‌​​​​‌​​‌‌‌‌‌‌​​‌​​​‌​​‌​​​‌‌​‌‌‌​​​‌​‌​​​‌​‌​‌​‍would and benefit of the cost ment moving.” from flow Id.6 Likewise, we conclude States, 504 v. United Wade (quoting

Id. an ade presented has here L.Ed.2d 181, 187, 112 S.Ct. U.S. to file the dis declining reason for quate omitted). (citation (1992)) that cannot reason cretionary motion—a Espinoza facts of particular While arbitrary or as fairly be characterized from distinguishable admittedly are Cano motive. an unconstitutional based on in the instant guilty plea conditional conditional, and was guilty plea Johnson’s government’s case, scope of the broad to continue that he intended he made clear Indeed, ap we was established. discretion on order a favorable pursue and reached plied Espinoza-Cano successful, If the basis appeal. v. Medi United same conclusion gov As the charge would dissolve. federal strikingly similar a case na-Beltran maintains, ‘ac “has not ernment defendant, having pled guilty The ours. way in a that ensures responsibility cepted ap following deportation, reentry illegal in a certainty just punishment of his grant court’s refusal the district ” pealed Newson, manner.’ United States timely point reduction him the third Cir.2008) (quoting Medina-Beltran, 3E1.1(b). background).7 cmt. U.S.S.G. 3E1.1 that the argument his rejected 731. We re expenditure of additional Avoiding the arbitrarily by de acted had defending anticipation of and sources motion, stating: required to file the clining legitimate govern is a appeal against Medina-Beltran, pled mental interest. See Although Medina-Beltran 731; Espinoza-Cano, 456 F.3d on the substantive F.3d at avoided a trial clearly, government’s Quite offense, sentencing to his 1138. objected he rationally related reason here is proffered rejected enhancement Because the to this end. waiver. The proposed appeal ment’s §a motion not to file decision anticipated and defended based on an arbitrary nor these was neither Under of his sentence. appeal his the district court ground, circumstances, unconstitutional government’s deci- sis, readily virtually any opinion becomes as curiously both denounces 6. The concurrence human distinguishable the limits of the "large- as Espinoza-Cano and Medina-Beltran view of case strongly imagination. Such dismissive respectfully inapposite.” We but ly proper We addressed the reasoning. is unwise. colleague's law disagree with our §of concurrence, analysis of the current version example, that "we insists applied it in Medina- Espinoza-Cano the circumstances only speculate” about can Mеdina-Beltran, holdings in We take the both upheld gov- Beltran. where we they faithfully state and cases for what to move for a those decision not ernment's (b) them here. follow because 3E1.1 reduction "anticipate[ defend[] ] forced to merely nature of Johnson’s We note the appeal.” F.3d at 731. [Medina-Beltran’s] degree relevant to his appeal because it is colleague suggesting that hope is not We our the es- acceptance responsibility, which is any opinion pertinent as not we can minimize imply We do not that John- spec- of 3E1.1. sence panels based on bald authored other argu- compelling might had a more forgotten have might have son panels ulation that the preserve right only sought to he ment had purposefully omitted facts mention or sentencing pertaining to the holding. appeal issues to their material circumstances judicial analy- determination. type of we entertain this Once appropriately grant refused to The Fifth Circuit similarly has ad sponte. us, additional one-level reduction sua dressed the issue before rejecting vir tually arguments identical by the defen again support We once find for our hold- Newson, dant. United v. circuits, ing in our sister which have con- upon case which we relied Medina- challenges fronted similar Beltran, the defendant timely pled guilty 3El.l(b). ment’s broad discretion under a drug possession charge. 515 F.3d at See, e.g., Espinoza-Cano, 456 F.3d at government 375. The declined to move (relying heavily 1135-36 on out-of-circuit discretionary one-level authority). Blanco, In United States v. 3El.l(b) “solely because de [the (10th Cir.2006), 466 F.3d 916 example, accept appellate fendant] would not approved the Tenth Circuit the refusal to waiver provision proposed its plea because, move for the additional reduction agreement.” Id. at 377. The defendant motion, on the defendant’s sentence, appealed arguing expend was forced to reweighing resources government’s refusal was “irrational and drug evidence at an independent testing punitive and not based on a legitimate gov facility. Id. at 918-19. The court held ernmental purpose” purpose because the that this decision was neither unconstitu- 3El.l(b) §of strictly prevent “to tional arbitrary nor “[ejnsuring because waste of prosecutorial judicial re efficient resource allocation legitimate is a sources at the trial-court level.” Id. The purpose end and a stated countered that 3El.l(b).” 918; Id. at see also Moreno- “encompass[es] expenditure Trevino, 432 F.3d at (finding 1186-87 ap- the Government’s time and effort at the propriate government’s refusal to file a prejudgment stage appellate but also in defendant, motion where the collateral proceedings,” review and that having timely pled guilty illegal reentry “conserving[governmental] resources deportation, after indicated that he intend- post-judgment proceedings legiti serves a again ed to reenter the country after his governmental mate Apply interest.” Id. removal, incarceration and in violation of ing the same standard that apply, we the terms of his agreement and super- Fifth Circuit government. sided with the release); vised United States v. Sainz- Relying on our in Espinozar-Cano, decision Preciado, 715-16 Cir. the court concluded that “[t]he defendant’s 2009) (“So while early Sainz-Preciado’s refusal to right waive his appeal is a guilty plea spared expense trial, of a proper basis for the Government to decline the government still prepare had to ... motion, to make such a as it rationally testimony аnd other prove evidence to related to purpose of the rule and is full scope of Sainz-Preciado’s criminal con- not based on an unconstitutional motive.” duct sentencing at the hearing. This add- Id. 378. We think the reasoning of the ed burden to both the and the Fifth Circuit is sound.8 system court gave government good (if one) reason it needed not to file a argument Johnson’s appeal on focuses 3El.l(b) motion.”). exclusively almost on the timeliness of the 8. The concurrence cites other today. Determining non-circuit whether a defendant has Anzalone, cases such as United States materially prosecution assisted the of others (8th Cir.1998), F.3d 1125 and United States v. accepted whether a defendant has re- Wilson, (7th Cir.2004), sug- sponsibility in a sufficient manner are far gest competing that there is a view of what stated, inquiries. ensuring different As we constitutes arbitrariness. But Wilson, Anzalone efficient allocation of resources is involving cases re- plainly legitimate government interest con- fusal to file a 5K1.1 substantial assistance 3El.l(b). Indeed, templated by large to a motion, are holding not inconsistent with our prior operation determined to the the nature of his conditional plea and, not — (a) greater, is 16 or interests subsection level plea governmental or the mark, the defendant has assisted authorities position This misses at stake. investigation prosecution or of his that a defen “ignores principle it as by taking one or more for a own misconduct fulfillment of the conditions dant’s following steps: adjusted offense level is motion for (1) relief.” necessary, does not mandate timely but infor- providing complete 1136; at see also Espinoza-Cano, government concerning mation to the Wade, offense; 112 S.Ct. 1840 504 U.S. his own involvement in the or is a (“[Ajlthough showing of assistance (2) timely of his notifying authorities necessary relief [under condition guilty, intention to enter a 5K1.1], it is not a sufficient one. The thereby permitting decision not to move Government’s preparing permit- avoid for trial and not on a failure to ac have been based ting the court to allocate its resources knowledge appreciate help, Wade’s but efficiently, simply on its rational assessment by decrease the offense level 1 addition- cost and benefit that would flow from mov al level. heavily In relies

ing.”). support, Johnson 3El.l(b) (2002). Thus, U.S.S.G. when Vance, 62 F.3d 1152 on United States Vance, we decided a defendant enti was (9th Cir.1995), by and other decisions our to “a tled third level reduction either for that considered a court and other circuits providing information to the materially §of 3E1.1 that prior version regarding by his own involvement or time applicable from the current version differs ly notifying of his intent to in this case. plead guilty.” Espinoza-Cano, 456 F.3d “key inquiry” at 1134. The under the old April the decision to award Before 3El.l(b) simply version of “whether acceptance the third-level reduction complete timely.” the confession was non-discretionary responsibility was Blanco-Gallegos, 188 at 1077. F.3d lay in hands of the district court—a reviewed for clear “factual determination The Prosecutorial Remedies and Other Blanco-Gallegos, error.” United States v. Exploitation Tools to End the of Children (9th Cir.1999). Sec- (“PROTECT Act”), Today Act of 2003 3El.l(b) formerly read: tion 108-21, § 401(g), Pub.L. No. 117 Stat. (2003), qualifies materially If for a 671-72 the defendant decrease altered 3El.l(b).9 (a), Notably, under subsection the offense level it made “the third extent, (or 5K1.1), colleague creating disagreement pass judg- we our is can where, they reading, ap- ment on those factual scenarios as on careful there is none. pear appeal in the next case. We decide the reject "pa- We further the concurrence’s hypothetical now before all us—not reasons entirely irrelevant rade of horribles” give refusing could to file reasoning, which Johnson’s case. This line of requisite motion. presents scenarios that bear no resemblance presented, merely colleague 9. "Vance to the facts a strawman. Our contends that inter- reviewing government's preted language substantially identical to that refusal to file But, accounts, motion, we have described the at issue here.” all the 2003 major change analysis to whether the was "ra- PROTECT Act marked a in the decision any legitimate governmen- analysis tionally related to of a defendant’s entitlement See, (b) e.g., third-level decrease. purpose.” tal 3E1.1 Sainz-Preciado, ("We, along happens prosecutors abuse 566 F.3d at 715 If it issue, broad, limitless, every with other circuit to consider the their but not discretion under subject acknowledge govern to the discretion of that the level reduction We mandatory, government, rather than ment’s broad discretion to move for the 3El.l(b) timely Espinoza- § upon guilty.” a third-level reduction Cano, Further, might place 456 F.3d at 1137. some eases defendants in a Blanco, exprеssly Act consid dilemma. PROTECT inserted See 466 F.3d (“[The enjoyed into government’s right eration of the resources to in defendant] post-PROTECT reweighing drugs, the calculus. Under the sist on and he could 1.1(b), § Act that government right ways: by version of 3E exercise one of two a motion stating reweighing drugs by waiving must file the defen sentence.”); timely right exchange dant’s notification of an intent for a lower plead guilty only not “permitt[ed] gov generally Ensminger, see United States v. (9th Cir.2009) preparing trial,” ernment avoid (noting but 567 F.3d “permitt[ed] government also and the the defendant’s informed choice to forgo court to allocate their resources efficient strategies by entering available defense 3El.l(b) (2006) § ly.” (emphasis But, guilty plea). U.S.S.G. Johnson has no legal added). changes signifi Both of these are discretionary entitlement one-level result, govern cant. As a Vance acceptance responsibility. does reduction for Johnson, Simply put, here.10 relying we have again, As stated time and “there exclusively pre-PROTECT on nothing improper Act authori government about the ties, government’s fails to account providing an incentive to plea bargain.” broad 1138; discretion whether to file a Espinoza-Cano, 456 F.3d at see also 1.1(b) motion, Bаldrich, 3E which we have con United States v. (9th Cir.2006) in Espinozar-Cano firmed and MedinaB (rejecting challenge eltran,11 1.1(b) that “section 3E is unconstitutional Vance, have held that the motion is we held that the defendant’s filing necessary prerequisite of a to a motion could not serve ‍‌​​​​‌​​‌‌‌‌‌‌​​‌​​​‌​​‌​​​‌‌​‌‌‌​​​‌​‌​​​‌​‌​‌​‍reduc- receiving point as a bar to the third reduction congressional tion. That rule reflects a 2003 timely prose- where the defendant notified the 1.1(b) amendment 3E that added the plead guilty. cution of his intent to 62 F.3d at 'upon government’ language, motion of the 1157. Given that the issue here relates to the indicating Congress’s intent to leave third- expenditure governmental ap- resources on point reductions to the discre- peal, inapposite Vance is for this reason as (internal omitted)); Beatty, tion.” citation well. While Vance remains authoritative in ("If required F.3d at 15 were respects, certainly other it does not demon- to move for the third-level reduction when the strate, argues, as Johnson that the timely plea, thereby saving defendant enters a arbitrarily refusing ment acted to file a expense prepara- of trial motion in the instant case. tion, language requiring the amended that the nullity. file a motion would be a argues government's 11. Johnson also that the holding effectively Such a would reinstate the arbitrary refusal was it because has not taken pre-2003 by rendering version of 3E1.1 en- position the same in other criminal cases in- titlement to the motion automatic if the defen- volving pleas conditional within the District 3El.l(a) dant received the reduction under argument of Alaska. This lacks merit. To ‘timely’ plea.”). and entered a The concur- "arbitrary,” not be need rence, inexplicably, somewhat dismisses as rationally demonstrate that its decision was inapposite point the two decisions on from legitimate related to a end. circuit, our which follow our sister circuits’ purposes 1136. One of the pre-2003

view of in favor of case PROTECT Act amendments was to allow the interpreting materially law different version government to determine when third-level provision. of the Guidelines The law has appropriate case-by-case reduction is on a changed. basis. However, ceptance responsibility. I it defendants for exer penalizes because my I separately write because believe right go cising their constitutional colleagues majority by misreading in the triаl”).12 sup bring elected to — 3El.l(b), by language misjudging us, delaying finality argument pression continuing validity controlling the of our causing and prosecution this criminal Vance, precedent United States 62 expend to allocate and the (9th Cir.1995), by relying F.3d 1152 and resources to defend substantial additional heavily largely inapposite too on case correctly court appeal. this The district unreasonably expand scope the law— government acted with concluded that the government’s discretion under United it refused to file a in its discretion when 3El.l(b). Sentencing Guidelines 1.1(b) motion. 3E majority In doing, giving so risks fed- prosecutors penalize eral undue license to IV forcing defendants for suspicion reasonable The officers had resources, if expend government’s even the investigatory stop and frisk of conduct justification doing entirely for so is unre- result, Johnson, and, as a the district court objectives lated to the stated of the Sen- sup- motion to denying did not err tencing Guidelines. properly court also press. district majority I that unnecessarily believe request for the discre- declined Johnson’s what, view, my conflates should be two adjustment accep- tionary one-level (1) inquiries: pre distinct the substantivе 3El.l(b). responsibility tance of under requisites adjustment for a third-level un AFFIRMED. (2) 3El.l(b); scope der of gov 3El.l(b). ernment discretion under SMITH, JR., Judge, D. Circuit MILAN I Specifically, would first determine the concurring in the dissenting in but part, 1.1(b) meaning of 3E and whether the judgment: eligible adjust defendant became correctly agree I that the district court by fulfilling require ment the substantive motion, denied Johnson’s 3El.l(b). Then, gauge ments of I would ultimately, that the district court did government’s whether denial of the declining to award adjustment rationally abuse its discretion related to the adjustment legitimate government for ac- identified interest.1 Johnson a third-level point by that 12. We further out that "it is well settled ernment’s conduct court’s own notion right legitimate governmental a is no constitutional to an of what constitutes there Ohio, States, objective. appeal.” Abney v. United 431 U.S. See Allied Stores Inc. v. Bowers, 522, 528, 437, 651, 656, U.S. 79 S.Ct. 3 97 S.Ct. 52 L.Ed.2d 651 358 Sudthisa-Ard, (1959) (1977); (holding regulation accord United States v. L.Ed.2d 1994). scrutiny any Cir. will withstand minimal "if state "[T]he reasonably right judgment court can be conceived that to a from more than one of facts it”); necessary Kentucky, grace would sustain Madden v. is a matter of and not 83, 88, (1940) ingredient justice.” v. United U.S. 60 S.Ct. 84 L.Ed. 590 Cobbledick States, 323, 325, (noting plaintiff U.S. 60 S.Ct. that Fourteenth Amendment (1940). "negative every L.Ed. 783 must conceivable basis” for the law undеr traditional rational-basis re- view); Koppelman, v. Evans Andrew Romer I note that at the heart of this case is Intent, 6 Wm. & Mary and Invidious difficulty applying rational basis inherent Bill Rts. (1998). sentencing J. 114-15 In cases like sentencing review to motions one, however, pertinent guideline ex- this range adjustments the Guidelines. review, pressly articulates the interest employing other fields rational basis result, initially it unclear in this process equal protection issue. As a is specifically due law, gov- passes action judges legitimacy of the instance whether a court phrase conjunctive, are stated in the effectively cannot determine whether We “thereby” term denying applies phrases.3 basis for both government’s legitimate govern serves “thereby” “by The word is defined as first know what ment interest unless we Here, “timely that means.”4 “that” means is.2 legitimate government interest notifying authorities of ... intention to above, I Using approach described Thus, guilty.” enter a the section contrary majority’s effec- contemplates that the means which the conclude— holding tive dis- preparation defendant both saves trial —that denying its basis for an ad- cretion over allocation, permits efficient resource broad, justment under while through timely guilty plea. dif Stated closely nonetheless be tied to the must ferently, eligible adjustment, to be the plain language guideline. of the the defendant must have “assisted authori in the or investigation prosecution ties of Meaning Sentencing 1. The of Guide- by: his own misconduct” 3El.l(b) line (cid:127) “permitting government the to avoid Language preparing by trial” A. The Guideline’s the means of “timely notifying authorities of his in- language We first consider the of plea guilty” to enter a of tention and 3El.l(b) and whether Johnson fulfilled (cid:127) “permitting government the and the obligations under that section to be- court to allocate their resources effi- eligible adjustment. come As the 3El.l(b) notes, ciently” by “timely the means noti- majority states in rele- fying authorities of part that the his intention to vant motion plea guilty.” enter a should based on its assertion that the defendant case, both, In this Johnson did which is in investigation assisted authorities the why eligible he was for the third-level prosecution or of his own misconduct adjustment: government the in conceded timely notifying of his inten- authorities sentencing its memorandum that Johnson a plea guilty, thereby tion enter plea guilty timely had “entered a in a permitting government the pre- to avoid manner, possession admitted of a firearm paring permitting gov- for trial and felon, as a and saved the ernment and the court to allocate their addition, expense burden and of trial.” In efficiently. resources the district court stated on the record: “I added.) (Emphases prepa- any While the trial don’t think dispute there’s in the rec- phrase ration and the resource allocation timely [that ord Johnson’s only government's application guideline muster if it is related to the of the objective guidelines, determining guideline stated in the whether without what that basis,” me, illogical. it fails if it has no "conceivable means. To is this i.e., permissible long it is so as it relates to any legitimate government objective if phrase 3. The allocation resource cannot be —even objective completely conjunction untethered from timely read as a with the notifica- guideline's because, objective. stated I further ad- phrase tion were the former intend- such, dress this issue in Part II expect below conclude "by” ed as one would the word proper that the former is the standard. proceed "permitting court,” "timely notifying.” as it does with majority approach, imply- 2. The criticizes this 1(b) ing that we must undertake 3El. 4. Webster's Third New International Dictio- (2002) added). analysis by determining (emphasis the arbitrariness of nary denied, reh’g en banc expended no re- 161 F.3d 1125 Cir.1998).6 preparing trial].” sources fully majority does not ex Though Interpreted B. analysis implies that Section

plain reasoning, its its should be read so as render This Circuit adjustment ineligible for the a defendant unnecessary, This semantic exercise is trial goes he either or causes where however, previously interpret because we resources.5 That expend 3El.l(b)’s §ed substantive basis for the guideline’s interpretation misreads Vance, third-level 62 F.3d at view, my In the result of plain language. governs I believe that Vance still majority’s approach overlooks the ef basis, I disagree substantive with plead guilty the notice intent to fect of majority’s conclusion that Vance has and the term prong guideline Vance, applicability no this case. we “thereby.” pled held that a defendant who promptly Moreover, produce a reading such could losing suppression after motion— results; it could absurd allow right appeal but reserved the the mo any defendant-caused ment to cite tion’s denial—was nonetheless entitled to a whatsoever, еxpenditure no ment resource adjustment § full three-level 3E1.1 for ac guilty plea. matter how unrelated to the ceptance of responsibility. Id. The district My merely hypothetical; concerns are not that, among things, court ruled other the instances, government the previous filing defendant’s a suppression motion adjustment denials of an court has based him rendered unsuitable for on, example: for under various Guidelines 3El.l(b)(2)7 § rejecting reduction. In having filed a civil lawsuit the defendant’s view, prep that we clarified that trial against government, the United States v. may aration in determining be considered (7th Wilson, 1003, 1008, 1010-11 390 F.3d suitability adjustment. for Id. so Cir.2004) (government declining to file mo- holding, explicitly we observed that “[t]he adjustment under Federal Rule of tion for guidelines do not mean ‘motions’ where 35(b) Procedure Rule or Sentenc- Criminal ” they say (citing ‘trial.’ Id. United States ing Guidelines 5K1.1 for substantial as- (9th 27 Kimple, v. F.3d 1414-15 Cir. sistance); having request- defendant’s 1994)); Price, see also United States v. Vance, ing suppression hearing, 62 F.3d (D.C.Cir.2005) (holding 443-44 1157; suspected and the defendant’s that, although government was forced use, continuing drug United States v. An- Cir.1998) zalone, spend resources on a hear 148 F.3d (also 5K1.1), ing, because “the [did] Government reh’g under vacated & en dispute banc reinstated that it granted, prepare & never had to for majority suggest potential flouting 5. The does the term that Guidelines occurs "prosecution,” courts, here, U.S.S.G. encom majority where like the allow the passes entirety proceed "the of criminal government ignore plain language of ings particular judgment in a case until is declining the Guidelines in to move for sen- Maj. Op. final and certain.” at 1002. This tencing adjustments. however, Vance, reading, is foreclosed Part I.B. below. F.3d at 1157. See 3E1.1(b)(2) part predeces- 7. Section of the Responsibili- Acceptance sor current "pa- majority examples a 6. The labels these below, ty though Guideline. As shown it is of horribles” and dismisses them as ir- rade slightly differently, it formatted is substantive- Maj. Op. at n. 8. relevant to this case. relevant; ly purposes they quite they similar for the this case. But are demonstrate [,] plain language preparing ... for trial and permitting trial 3El.l(b)(2) (2001)], de and the court to allocate its [ [the U.S.S.G. efficiently, their resources decrease the to a third-level re fendant] was entitled level”). Thus, by 1 offense level additional level. offense Vance duction only the defendant’s trial clarified that Thus, the PROTECT Act amended resource-saving ‍‌​​​​‌​​‌‌‌‌‌‌​​‌​​​‌​​‌​​​‌‌​‌‌‌​​​‌​‌​​​‌​‌​‌​‍timely plea be consid (1) 3E1.1, only by: changing but who determining suita ered in the defеndant’s adjustment initiates giving adjustment. bility for the third-level (2) deference; removing decision de provision fendant’s of information as a ba majority insists that Vance is no The (3) adjustment; receiving sis for in light of the PROTECT longer applicable adding the consideration of Act, materially Act changed because 3El.l(b). resources in preparing trial. See id. language I some case, The substantive basis for the decision to disagree. purposes For of this timely award the interpreted language substantially Vance essentially remains the same: that at the de identical to issue here. See United eligible adjustment, pro fendant is (9th Cir.2006) that, “timely vided he authorities of (noting except notified] his intention to a plea guilty, enter giving discretion over the 1.1(b) motion, thereby permitting language “the of section 3E avoid preparing “per for trial” and thus [pre-PROTECT tracks the former Act] 3El.l(b)(2)”). mitting [the the court to language and] of section allocate efficiently.” [their] resources PROTECT Act amended in the (bracketed (with U.S.S.G. following way portions indicat- underscore denoting Act ing changes). PROTECT I am through additions and the strike indi- deletions): persuaded Congress cating amend —in ing guideline, the leaving unchanged but (b) If qualifies the defendant for a “timely ... plea guilty” “pre (a), decrease under subsection the of- paring language' for trial” prior fense level determined oper- —intended guideline amended to allow consideration (a) ation of subsection is level 16 or guilty pleas, conduct unrelated to such upon govern- greater, and motion of the (the appeals as or motions to suppress stating ment that the defendant has as- latter, specifically rejected basis sisted investigation authorities or Vance and Price as a valid reason for prosecution by of his own misconduct denying adjustment). the third-level If taking following one or more of the Congress interpretation, intended that it easily

could language have included such or removed the “timely references to ... offense; his-own.....involvementin the plea guilty” and “preparing for trial.”8 (2) timely notifying authorities of his plea guilty, intention to enter a there- Accordingly, while the PROTECT Act by permitting undoubtedly abrogated avoid holding Vance’s as Indeed, majority suggests approach 8. The expending that this trial resources. it is the changes renders the created the PROTECT majority's approach effectively which renders "superfluous.” Maj. Op. Act at 1005-06 n. 9 superfluous "timely plea guilty” ... (citing Beatty, United States v. 538 F.3d 15 "preparing portion post- for trial” (1st so; Cir.2008)). dispute, Not there is no by permitting PROTECT Act instance, that the is now the adjustment withholding based on a reason sole arbiter of whether the defendant's guideline’s purpose. unrelated to the stated sufficiently timely prevent was it from

1011 entity process Blanco-Gallegos, to who or what initiates the United States v. 188 (9th Cir.1999). However, F.3d third-point adjustment and the def- noted, the PROTECT Act added an decision, holding erence afforded that its predicate additional to a defendant’s bene- adjust- as to the substantive basis 1.1(b) fitting by amending from 3E good law and controls our ment remains Sentencing give Guidelines to issue, i.e., analysis of this whether Johnson “power,” “duty,” ment the not the United eligible adjustment for the the first Moreno-Trevino, States v. 432 F.3d at place. See (10th Cir.2005) (quoting Wade v. By erroneously disregarding Vance States, 181, 185, United 504 U.S. 112 S.Ct. majority us with altogether, leaves (1992)), 118 L.Ed.2d 524 in the exer- nothing against which to measure the arbi- cise of “broad discretion to determine government’s trariness of the action. when the ap- [§ ] is stated, holding on this issue As Vance’s propriate.” Espinoza-Cano, 456 F.3d at is clear: the “resources” that 1137-38. decision must in gauging considered the defendant’s sat- i.e., arbitrary, not be not rationally related guideline isfaction of are those re- to a legitimate government purpose, or preparation. sources devoted to trial based on unconstitutional motive. Unit- (“[A] plea sufficiently F.3d ad- Newson, ed States v. vance of trial so that the can Cir.2008) Wade, (citing 186-87, 504 U.S. at preparation avoid trial and the court can 1840). 112 S.Ct. allocate resources efficiently its is suffi- case, government conceded, this ciently timely points.”); for all three id. agreed, and the district court that Johnson (“The guidelines do not mean ‘motions’ timely pled guilty had gov- and saved the 3E1.1(b)(2).” they say

where ‘trial’ at ernment the expense of trial preparation. 1414-15)). (citing Kimple, It is Thus, only remaining question clear, therefore, that eligible Johnson was whether the abused its discre- adjustment. by denying adjustment. tion Johnson the issue, agree On this I majority with the II. Arbitrariness that, Act, post PROTECT noted, enjoys For the reasons discretion in plea moving Johnson’s the third- 3El.l(b). adjustment § level I dis- pertinent plain satisfied the terms of agree majority with scope as to the of § eligible and he was therefore that discretion. adjustment. a third-level Under scheme, pre-2003 Sentencing Guidelines yet clearly we have not While resolved this detеrmination would have ended our issue, this United States v. Medina- cf. inquiry, (9th Cir.2008) and Johnson would have been en- Beltran, (per 542 F.3d 729 adjustment. curiam);9 titled to the downward Espinoza-Cano, 456 F.3d Cf. Medina-Beltran, waiver, provides 9. In the court determined id. at the case no factu- that, circumstances,” gov- Therefore, these "[u]nder background. al we do not know ernment's decision not to move for a circumstances,” id., of ”th[ose] nature 1(b) arbitrary. § 3El. reduction was not Id. plea "timely” whether Medina-Beltran's however, concluding, In 731. so the Medi- 3El.l(b). § required by only spec- as We can panel provided analysis na-Beltran no government expended ulate whether the re- cited an out-of-circuit decision as au- preparation sources on trial and whether— Newson, thority. (citing Id. 515 F.3d at 378- unlike here—the defendant failed to meet the 79). stating Other than that the defendant 1.1(b). Curiously, relevant terms of 3E objected sentencing to his enhancement and Medina-Beltran is structured a more like rejected government's proposed appeal cases, Medina-Beltran, 1126,10 have considered the 542 F.3d other circuits application Act 456 F.3d 1126. But the post-PROTECT 1.1(b) analogous application majority and the fails to mention that at least one 3E 5K1.1, i.e., govern approach. treatment other circuit takes a different deciding Anzalone, to ment’s discretion whether at 941. See 148 F.3d Anza adjustment for a lone, that, move for a downward Eighth stated where Circuit assistance.11 The defendant’s substantial bases its decision not to concluded, Fifth Tenth have Circuits move for a downward on rea by articulated the Tenth Circuit as sons unrelated to whether the defendant Blanco, “[ejnsuring v. United States requirements fulfilled the facial of the sen legitimate a efficient resource allocation is tencing guideline, its decision does not purpose end and a stated legitimate government serve a interest. 3El.l(b),” Cir. (holding Id. decision not 2006), a nonarbitrary governmen and held to move for 5K1.1 substantial assistance “ tal reduc refusal move for one-level departure may not be based on ‘factors 1.1(b) tion under 3E when the United pro other than the substantial assistance ” required expend States is additional re (quoting vided the defendant’ United of, instance, sources as a result a de Rounsavall, request reweigh drug fendant’s evidence (8th Cir.1997)) where refused Id.; Newson, or refusal appeal. to waive to file motion it suspected because 515 F.3d at 378. defendаnt, assistance, providing while had Thus, majority using illegal drugs). continued support finds for its con cases, preceding clusion in the there is no among as well as consensus the circuits largely inapposite12 government may two Ninth Circuit over whether cite a disposition opinion, memorandum adopt than an did not make a deliberate decision to and, structure, announced.”). consistent with that it does the rule of law it purport any Though to state rule of law. majority Espinoza-Cano largely inapposite. specula- accuses me of “bald is also Johnson, Espinoza-Cano pertinent tion” as to the lack of Unlike facts in that did not case, Maj. ‍‌​​​​‌​​‌‌‌‌‌‌​​‌​​​‌​​‌​​​‌‌​‌‌‌​​​‌​‌​​​‌​‌​‌​‍Op. "timely notify[ at 1003 n. I intend no authorities of his intention ] 3El.l(b); authoring panel offense to guilty,” when I observe enter a U.S.S.G. indeed, opinion provide that it is pled guilty critical for an he never at all. 456 F.3d case; pertinent facts of the the reader should at 1129. His conduct therefore did not meet required speculate, majority 3El.l(b), and, not be as the plain requirements here, result, might does about what those facts in- reasonably suggested it cannot though clude. For this Medina-Bel- that the abused its discretion in reason— undoubtedly published opinion tran is denying Espinoza-Cano adjust- a third-level controlling in this circuit—its lack of factual Espinoza-Cano’s holding ment. in this re- background cursory therefore, treatment of the gard, bearing should have no on 3El.l(b) § prevent determining issue us from this case. precisely Accordingly, what it controls. Med- notes, per ina-Beltran cannot be read to establish a majority government’s 11. theAs the govern- se rule of where nonarbitrariness the § discretion under is the same 5K1.1 as under 1(b) ment declines a 3El.l(b). to move for 3El. ad- See 456 F.3d at justment appeals because the defendant (holding prosecutor that "a is afforded Johnson, conviction. United States v. acceptance the same discretion to file Cf. (9th Cir.2001) (en banc) (Ko- responsibility motion for a third level reduc- zinski, J., (“Where concurring) it 3El.l(b) is clear that tion under section as that afforded casually a statement is made and without filing of a substantial assistance mo- analysis, may appropriate ... it 5K1.1”). re-visit tion under section case[,]” provided the issue in a later that "tire panel panel later is convinced that the earlier See notes 9 and 10. expectation Guidelines’ lan- reasonable of a corresponding not based in the reason benefit. adjustment. denying thе relevant guage (hold- Wilson, at 1010-11 also Nonetheless, having considered the rel- Cf. to file a government’s refusal Rule

ing policy evant I authority implications, 35(b) §or 5K1.1 motion for substantial that, case, reluctantly in this conclude rationally not related to a was government’s assistance of a denial third-level ad- government justment interest where it legitimate arbitrary. was not Although plea Johnson’s having permitted based on threat- was defendant’s level, to husband its resources at the trial which, against government a lawsuit ened Johnson’s unwillingness waive his ap- negated substan- argued, peal rights showed he had not “ac- by creating an adversarial tial assistance cepted way in a responsibility that en- (holding civil relationship); id. at 1010 suit just sures the of his certainty punishment afield from justification was “so far manner,” timely a TJ.S.S.G. 3E1.1 35(b) Rule of 5K1.1 and as to be purpose cmt. background. Importantly, though irrational”). guilty plea his conditional technically was entirely persuaded by I am While a notice of his “intention to a plea enter Eighth I am approach, Circuit’s also guilty” Guidelines, under the letter of the majority’s ap- uncomfortable with the it did not fulfill spirit as Though majority proach this case. plea conditional arguably not holding to limit its to whether the purports “guilty” true contemplated by expend required re- 3El.l(b). I have concluded differ- that, appeals, on I believe con- sources ently reviewing were I the issue under doning adjustment denial based on the the pre-PROTECT regime. Act But un- “legitimate government end” of “efficient standard, der our I current believe that (cit- allocation,” Maj. Op. at 1004 resource basis its denial was Blanco, 918), the ing 466 F.3d at effect of sufficiently tethered Guidelines to is much majority’s holding broader. rationally render that basis related to holding significantly unreasonably legitimate government interest and nonar- meaning of arbitrariness and expands result, bitrary. I As a concur the judg- interest,” “legitimate government thereby ment. near carte

giving blanche deny whenever govern-

the defendant’s causes the conduct expend any

ment to resources. To allow to use ac- ZEPEDA, Petitioner-Appellant, Jessie complish objectives unrelated to the Guide- plain lines’ both language flouts the Guide- Warden, WALKER, James Congress’ lines and intent. Such a result California Prison-Sacramento, State Congressional sentencing undermines ob- Respondent-Appellee. jectives by vitiating pur- the Guidelines’ timely pose encouraging defendants No. 08-56085. trial: if the plead avoid of Appeals, United States Court can decline to move for a

ment Ninth Circuit. unrelated to reasons Sept. 2009.* Submitted 3El.l(b)’s purpose, stated future Sept. Filed defendants will have fewer incentives to timely doing plead guilty, since so would key right surrendering

entail with no

Case Details

Case Name: United States v. Johnson

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 10, 2009

Citation: 581 F.3d 994

Docket Number: 08-30094

Court Abbreviation: 9th Cir.